From: To: Subject: Date:

Cyrus Earivar

FOIA Resource

[External_Sender] EOIA / Earivar

Monday, November 14, 2016 1:22:08 PM

To Whom It May Concern:

CASE NO: 2017-0152 DATE REC'D: 11/15/2016 SPECIALIST: RELATED CASE:

My name is Cyrus Farivar and I am a journalist with Ars Technica (http:Uarstechnica.com). We are a technology news website published by Conde Nast, which also publishes The New Yorker, Wired and other magazines.

This is a request for records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 and the Privacy Act, 5 U.S.C. § 552a. This request should be considered under both statutes to maximize the release of records.

REQUESTER INFORMATION

Name: Cyrus Farivar Address: 4200 Park Blvd. #512 Oakland, CA 94602 Email: cyrus.farivar@arstechnica.com Phone: 510-938-1439

RECORDS SOUGHT

I am hereby requesting any and all materials consisting of, concerning, discussing, relating to, or referring to "David Charles Hahn" ( 1976-2016) of Michigan.

http:Uharpers.org/archive/1998/11 /the-radioactive-boy-scout/

Hahn gained some notoriety in the 1990s for attempting to build a homemade breeder nuclear reactor his his mother's backyard shed. Your agency was one of several called in to respond.

Hahn passed away in September 2016 (http:Uwww.tributes.com/obituary/show/David-Charles-Hahn-

103989982), and thus there is no relevant privacy interest.

This request is meant to include any and all internal or external correspondence, documents, training materials, talking points, marketing materials, images, diagrams, videos, audio recordings, legal memos, illustrations briefs, incident reports, invoices, contracts, grant applications and associated documents with this request.

Please consider this request from January 1, 1994 until the date the search for responsive records is conducted.

If specific portions of any documents are exempt from disclosure, please provide the non-exempt portions.

I request that all records be provided to ~e in electronic form or format.

1. Instructions Regarding "Leads":

As required by the relevant case law, your agency shc:>uld follow any leads it discovers during the conduct of its searches and perform additional searches when said leads indicate that records may be located in another system. Failure to follow clear leads is a violation of FOIA.

2. Request for Public Records:

Please search for any records even if they are already publicly available.

3. Request for Electronic and Paper/Manual Searches:

I request that searches of all electronic and paper/manual indices, filing systems, and locations for any and all records relating or referring to the subject of my request be conducted.

4. Request regarding Photographs and other Visual Materials:

I request that any photographs or' other visual materials responsive to my request be released to me in their original or comparable forms, quality, and resolution. For example, if a photograph was taken digitally, or if your agency maintains a photograph digitally, I request disclosure of the original digital image file, not a reduced resolution version of that image file nor a printout and scan of that image file. Likewise, if a photograph was originally taken as a color photograph, I request disclosure of that photograph as a color image, not a black and white image. Please contact me for any clarification on this point.

5 .. Request for Duplicate Pages:

I request disclosure of any and all supposedly "duplicate" pages. Scholars analyze records not only for the information available on any given page, but also for the relationships between that information and information on pages surrounding it. As such, though certain pages may have been previously released to me, the existence of those pages within new context renders them functionally new pages. As such, the only way to properly analyze released information is to analyze that information within its proper context. Therefore, I request disclosure of all "duplicate" pages.

6. Request to Search Emails:

Please search for e-mails relating to the subject matter of my request.

7. Request for Search of Records Transferred to Other Agencies:

I request that in conducting its search, your agency disclose releasable records even if they are available publicly through other outside sources, such as NARA.

8. Regarding Destroyed Records

If any records responsive or potentially responsive to my request have been destroyed, my request includes, but is not limited to, any and all records relating or referring to the destruction of those records .. This includes, but is not limited to, any and all records relating or referring to the events leading to the destruction of those records.

Fee Category and Request for a Waiver of Fees:

I am willing to pay any reasonable expenses associated with this request, however, as the purpose of the requested disclosure is in full conformity with the statutory requirements for a waiver of fees, I formally request such a waiver. I request a waiver of all costs pursuant to 5 U.S.C. §552(a)(4)(A)(iii) ("Documents shall be furnished without any charge ... if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester."). Disclosure in this case meets the statutory criteria, and a fee waiver would fulfill Congress's legislative intent in amending FOIA. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to ensure that it be 'liberally construed in favor of waivers for noncommercial requesters."')

As the legislative history of FOIA reveals, "It is critical that the phrase 'representative of the news media' be broadly interpreted if the act is to work as expected .... In fact, any person or organization which regularly publishes or disseminates information to the public ... should qualify for waivers as a 'representative of the news media."' 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis in original quotation); and 2) "A request by a reporter or other person affiliated with a newspaper, magazine, television or radio station, or other entity that is in the business of publishing or otherwise disseminating information to the public qualifies under this provision." ·132 Cong. Rec. H9463 (Oct. 8, 1986) (emphasis in

original quotation)). Therefore, in accordance with the Freedom of Information Act and relevant case law, I, Cyrus Farivar, should be considered a representative of the news media.

Federal regulation provides that the agency may waive or reduce fees upon written request if the requester can "demonstrate that a waiver or reduction in fees is in the public interest because disclosure of the requested records is likely to contribute significantly to the public understanding of the operations or activities of the government and is not primarily in [the requester's] commercial interest." 6 CFR 1001.10(1).

As explained below, this is the type of request, and I am the type of requestor, for which courts have held that waiver of fees is required under FOIA.

I. DISCLOSURE OF THE REQUESTED RECORDS IS IN THE PUBLIC INTEREST BECAUSE IT IS LIKELY TO CONTRIBUTE SIGNIFICANTLY TO THE PUBLIC UNDERSTANDING OF THE OPERATIONS AND ACTIVITIES OF THE GOVERNMENT.

A. The subject of the requested records concerns the operations and activities of the federal government with respect to how it deals with secure communications.

B. The disclosure is likely to contribute to an understanding of government operations and activities because the disclosable portions of the requested records will be meaningfully informative about those operations and activities. The vast majority of disclosable information is not already in the public domain, in either a duplicative or a substantially identical form, and therefore the disclosure would add substantial new information to the public's understanding of issues including but not limited to: privacy, law enforcement, foreign affairs, civil liberties, surveillance, security and criminal justice.

C. The disclosure of the requested records will contribute to the

increased understanding of a broad audience of persons interested in the subject, rather than merely my own individual understanding. Further, I will be collaborating with professionals who have great expertise in the subject area, and I have the ability and intention to effectively convey information to the public.

As explained herein in more detail, the audience likely to be interested in the subject is broad, and includes, historians of modern American government, politics, culture, and national security; journalists reporting on American politics, government, national security, and society; civil liberties attorneys; and the general public.

I firmly intend to analyze the requested records in order to facilitate significant expansion of public understanding of government operations. I am well qualified to perform this analysis.

I have been a professional journalist for over a decade, and have held my current position for over three years. Prior to working at Ars Technica, for two years I was the Science and Technology Editor at Deutsche Welle English, the English-language service of the German international public broadcaster. I have also reported for The New York Times, The Economist, Wired, Slate, Foreign Policy, National Public Radio, Public Radio International, the Canadian Broadcasting Corporation, and many others.

As should be clear from the above, I have the ability and firm intention to disseminate to the public significant expansions of understanding of government operations based on my analysis of the requested disclosures.

Case law on this matter is emphatically clear that journalistic inquiry alone satisfies the FOIPA public interest requirement. National Treasury Employees Union v. Griffin, 811 F.2d, 644, 649 (D.C. Cir. 1987). As articulated in the amendments to FOIA established by the OPEN Government Act of 2007, I solidly meet the applicable definition of "a representative of.the news media[.]" The OPEN Government Act of 2007 established that for FOIA purposes, 'a

representative of the news media' means any person or entity that gathers information of potential interest to the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. 552(a)(4)(A)(ii)

Based on my completed and firmly intended research, analysis, and information dissemination activities detailed at length herein, I clearly satisfy this description.

Further, the OPEN Government Act of 2007's definition of "a representative of the news media" is taken nearly verbatim from language used by the United States Court of Appeals, District of Columbia Circuit in the court's 1989 FOIA fee waiver-oriented ruling in National Security Archive v. Department of Defense.[1] As the court also relatedly found in National Security Archive v. Department of Defense, a requester need not already have published numerous works in order to qualify as a representative of the news media. The court found that the express "intention" to publish or disseminate analysis of requested documents amply satisfies the above noted requirement for journalists to "publish or disseminat[e] information to the public." National Security Archive v. Department of Defense, 880 F.2d 1386, (D.C. Cir, 1989). I have expressed a firm intention to continue disseminating significant analysis of documents obtained through FOIPA requests. And I have demonstrated my ability to continue disseminating significant analysis of documents obtained through FOIPA requests.

Therefore, in that I am "person or entity that gathers information of potential interest to the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience," I solidly meet the applicable definition of "a representative of the news media." As such, I have more than satisfied the requirement for a fee waiver.

II. DISCLOSURE OF THE INFORMATION IS NOT PRIMARILY IN MY COMMERCIAL INTEREST.

A. Any commercial interest that I have which would be furthered by the requested disclosure is de minimis.

I am requesting the release of records to analyze for use in the dissemination of news articles. Though journalists do get paid for writing news articles, payment is not the primary purpose for which such work is conducted. As the D.C. Circuit explained in National Treasury Employees Union v. Griffin, 811 F.2d, 644, 649 (D.C. Cir. 1987), "While private interests clearly drive journalists (and journals) in their search for news, they advance those interests almost exclusively by dissemination of news, so that the public benefit from news distribution necessarily rises with any private benefit. Thus it is reasonable to presume that furnishing journalists with information will primarily benefit the general public[.]"

'

The disclosure of records will significantly benefit the public interest, and this benefit to the public is of vastly greater magnitude than my minimal commercial interest.

Additionally, the courts and the legislature have been deeply invested in ensuring that FOIPA duplication and search fees are not used by government agencies to deliberately or otherwise thwart legitimate scholarly and journalistic research:

This was made clear in Better Government Ass'n v. Department of State, in which the court ruled that, "The legislative history of the fee waiver provision reveals that it was added to FOIA 'in an attempt to prevent government agencies from using high fees to discourage certain types of requesters, and requests,' in particular those from journalists, scholars and nonprofit public interest groups." Better Government Ass'n v. Department of State, 780 F.2d 86, 89 (D.C. Cir. 1986).

This point is further elaborated in Ettlinger v. FBI. The legislative history of the FOIA clearly indicates that Congress intended that the public interest standard for fee waivers embodied in 5 U.S.C. § 552(a)(4)(A) be liberally construed. In 1974, Congress added the fee

waiver provision as an amendment to the FOIA in an attempt to prevent government agencies from using high fees to discourage certain types of requesters and requests. The 197 4 Senate Report and the sources relied on in it make it clear that the public interest/benefit test was consistently associated with requests from journalists, scholars and non-profit public interest groups. There was a clear message from Congress that "this public-interest standard should be liberally construed by the agencies." The 197 4 Conference Report, in which differences between the House and Senate amendments were ironed out, retained the Senate­originated public-interest fee waiver standard and further stated "the conferees intend that fees should not be used for the purpose of discouraging requests for information or as obstacles to disclosure of requested information."

Further evidence of con.gressional intent regarding the granting of fee waivers comes from a 1980 Senate Subcommittee report. The report stated that "excessive fee charges ... and refusal to waive fees in the public interest remain ... 'toll gates' on the public access road to information." The report noted that "most agencies have also been too restrictive with regard to granting fee waivers for the indigent, news media, scholars ... "and recommended that the Department of Justice develop guidelines to deal with these fee waiver problems. The report concluded: The guidelines should recommend that each agency authorize as part of its FOIA regulations fee waivers for the indigent, the news media, researchers, scholars, and non-profit public interest groups. The guidelines should note that the presumption should be that requesters in these categories are entitled to fee waivers, especially if the requesters will publish the information or otherwise make it available to the general public.

The court, in its Ettlinger v. FBI decision, continued that on 18 December 1980, a policy statement was sent to the heads of all federal departments and agencies accompanied by a cover memorandum from then United States Attorney General Civiletti

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which stated that he had "concluded that the Federal Government often fails to grant fee waivers under the Freedom of Information Act when requesters have demonstrated that sufficient public interest exists to support such waivers." The Attorney General went on to state: Examples of requesters who should ordinarily receive consideration of partial fee waivers, at minimum, would be representatives of the news media or public interest organizations, and historical researchers. Such waivers should extend to both search and copying fees, and in appropriate cases, complete rather than partial waivers should be granted.

Ill. CONCLUSION.

As demonstrated above, the disclosure of the requested records will significantly contribute to expanded public understanding of government operations. I have the intent and ability to disseminate this significant expansion of public understanding of government operations. The public interest in this significant expansion of public understanding of government operations far outweighs any

. commercial interest of my own in the requested release. Accordingly, my fee waiver request amply satisfies the rules of 6 C.F .R. 1001.10(1). Legislative history and judicial authority emphatically support this determination. For these reasons, and based upon their extensive elaboration above·, I request a full waiver of fees be granted. I will administratively appeal any denial of my request for a waiver of fees and sue to enforce my rights in court if necessary.

Finally, I call your attention to President Obama's 21 January 2009 Memorandum concerning the Freedom of Information Act, in which he states: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA [ .... ] The presumption of disclosure should be applied to all decisions involving FOIA."

In the same Memorandum, President Obama added that

government information should not be kept confidential "merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

Finally, President Obama ordered that "The Freedom of Information Act should be administered with a clear presumption: In the case of doubt, openness prevails."

Nonetheless, if any responsive record or portion thereof is claimed to be exempt from production, FOIA/PA statutes provide that even if some of the requested material is properly exempt from mandatory disclosure, all segregable portions must be released. If documents are denied in part or in whole, please specify which exemption(s) is (are) claimed for each passage or whole document denied. Please provide a complete itemized inventory and a detailed factual justification of total or partial denial of documents. Specify the number of pages in each document and the total number of pages pertaining to this request. For "classified" material denied, please include the following information: the classification (confidential, secret or top secret); identity of the classifier; date or event for automatic declassification or classification review or downgrading; if applicable, identity of official authorizing extension of automatic declassification or review past six years; and, if applicable, the reason for extended classification beyond six years.

In excising material, please "black out" the material rather than "white out" or "cut out." I expect, as provided by FOIA, that the remaining non-exempt portions of documents will be released. Please release all pages regardless of the extent of excising, even if all that remains are the stationary headings or administrative markings. In addition, I ask that your agency exercise its discretion to release records which may be technically exempt, but where withholding serves no important public interest.

Please do not hesitate to contact me if you have any questions

concerning this request.

Thank you. I appreciate your time and attention to this matter.

Cyms Farivar "suh-ROOS FAR-ih-var"

Senior Business Editor, Ars Technica https:Uarsteclmica.com/author/cyrns-farivar/

+ 1 510 938 1439 (mobile) iMessage/Signal/WhatsApp-friendly

Twitter: @cfarivar PGP /OTR: https:// arstechnica.com/ ars-staff-pgp-keys/#cyrns-farivar